نشریه پژوهش های حقوق تطبیقی
سال هفدهم شماره 1 (پیاپی 79، بهار 1392)

Legitimacy of law deals with rational justification of people''s allegiance to the law in civilized societies. In other words، given that the «rule of law» is observed in the society، there is a need to answer some important questions، and «what is the basis on which people in modern societies follow the law?، » Why we should obey the law «?، and» What are the justified reasons to legitimate law«? Schools of thought have tried to answer these questions based on their perspective about being، cognition and value. In this essay، we tried to answer the above questions from Islam´s and Max Weber’s point of views. I argue، on the one hand، that Weber’s approach can not properly justify allegiance to law because it considers legitimacy as legality. On the other hand، Islamic attitude points out to the source of legislation right that comes from Allah. So the citizens under Islamic rules feel strong moral (Sharia) obligations to respect law.

Consumer protection is very important for the today society. This theory aim to make a legal framework to protect & guarantee the consumer''s rights like having safe goods & services right، having information right، choice right، etc. Unfortunately there are not any special rules and provisions in this respect in Iranian law. But the Iranian judges، in their cases، verdict by interpretation of the present law and take help by comparing the Iranian law and regulations with the law and jurisprudence of other same legal systems، like French law. This article compares the conditions and possibility of creating security obligation in Iran and France legal systems. This paper wants to consider the ability of Iranian system to protect the consumer´s rights.

Although there is no doubt about the prohibition of defamation as one of the legitimate restrictions on the right to freedom of expression، but the boundaries of this prohibition are controversial، and one of the main controversies is about the kind and the nature of defamation''s victim. In this case، a group of scholars believe that only human beings are the object of defamation، and the subjective values such as national identity، religion or national symbols cannot be the object of defamation. In contrast، some scholars believe that human beings are not the exclusive object of defamation. Ratification of a resolution entitled «Defamation of Religions» by the Human Rights Commission in 1999 and reiteration of such a resolution by the Commission and the Human Rights Council and even the UN General Assembly thereafter indicates the depth of the above difference. Despite that the above institutions، given the ratification of the above resolutions، have confirmed the possibility of defamation of religion، some scholars، especially the Thematic Rapporteurs of the above institutions have opposed these resolutions and thereby have rejected the concept of defamation of religion. This article، while reflecting the spread of opposition to the above resolutions، reviews the arguments of the oppositions to them. Overall، the author concluded that these resolutions have been actually codified to protect the rights and dignity of persons and religious groups; therefore، they are consistent with the International Standards of Human Rights.

Where several persons cause damage، any of them will be responsible to compensate the victim. This responsibility may be common and dividable among them from the beginning (partial responsibility) or may be that each of them will have integral or solidary responsibility to the victim، and have to pay the whole damage. An important question that arises in this context is that the damage divided among several responsibles - whether at first، according to theory of partial liability، or after full payment of compensation by one of the responsibles - should be based on what criteria. Three criteria have been suggested in this regard by French lawyers: negligence criteria، equality criteria and degree of influence criteria. By studying Iranian and French law، this article tries to show that the third criterion، that is division of damage on the basis of the degree of influence in causing damage، is consistent with justice and enjoys the elements of civil responsibility particularly relation of causality between harmful act and the resulting damage.

Since discounting is the assignment of the delayed monetary credit before the due date for less than the nominal sum، its legitimacy in Islamic jurisprudence (Imamiye and Aameh) and the governing rules and laws has faced some challenges mainly due to the dispute over setting out the legal nature of discount. Thus، in this paper، by inferring from the aggregate Islamic jurisprudential decisions in Imamiye and Aameh Islamic jurisprudence، the legal nature and legitimacy of discounting of commercial instruments have been examined; different types of questionable agreements have been taken into consideration، in terms of structure، based on the two general categories of single (integrated) and combined (mixed) nature. Therefore، some people have considered discount as a single (or integrated) agreement and some others have perceived it as a combined (or mixed) agreement. It appears that discount has an integrated nature in the form of sales agreement that has been recognized as “sales of debt” in Imammiye jurisprudence; the discount’s legitimacy، in regard to this nature، in Aameh Islamic jurisprudence is «prohibited» while in Imamiye Islamic jurisprudence، it is «allowed».

The present study involved a critical investigation of typical judge selection approaches in the legal system of the United States of America (USA)، comparatively mapping the results onto Iran’s legal system. The results indicated that despite being a political process، the US’ M. O. of federal judge selection has no consequences for the judges’ procedural independence، owing to the prevailing security of tenure. Like-wise، notwithstanding the judicial independence-related problems and challenges it has effected، state-level judge selection has brought about promising prospects، as evident in the reluctance of the US’s legal system to set aside judicial election procedures. Also the comparative study of the US’s and Iran’s legal systems revealed that the political and beliefs-related prerequisites pre-ordained in the prospective judges’ qualifications list and judge appointment approaches by the Iranian policy-making body has، on the one hand، served to deny Iranian judges’ rights for democratic functioning، and left them owing to key political figures، on the other.

Economic growth and development is often contingent upon the growth and development of economic activities. In the light of the fact that business people are often concerned about their unlimited and personal responsibility for their economic activities، the decision to limit the liabilities of the economic system has led the states to support companies through which personal liabilities of businesspeople can be limited so that the obstacles to economic growth can be eliminated. One of these companies would be single-member companies، which emerged in the field of commercial law to bring about significant developments in the traditional laws of the said field (especially the contract theory of companies، and the unity of property and impossibility of its fragmentation law). Albeit these companies are new entities، they have attracted the attention of lawmakers in different countries، for they are significantly، economically beneficial. In this comparative research، we studied the origin of these companies and their position within legal systems.